“CBSA is Not a Fair or Accountable Agency”:Why We Need Canada Border Services Agency Oversight

Canada Border Services Agency (CBSA) officers have vast powers of arrest, detention, search and seizure, and questioning of travellers. Enforcing Canadian customs and immigration laws, CBSA has even wider powers than police agencies. One of the most significant of these powers is the detention and arrest of non-citizens without requiring a warrant. There have been a number of deaths of migrants and refugees in immigration detention, where detainees face prolonged and cruel confinement, and countless public incidents of CBSA officer misconduct.

Every major police agency in Canada has some form of independent oversight. Yet, despite its immense powers, there is no independent civilian oversight body to review CBSA policies or investigate officer misconduct. For the past several years, BCCLA has been advocating and campaigning for CBSA oversight. This is a small but necessary step towards ensuring CBSA accountability and independent oversight, though much more needs to be done to tackle the systemic marginalization and exclusion of migrants and refugees created by Canadian immigration enforcement policies.

In February 2020, Parliament tabled Bill C-3: An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act. Bill C-3 proposes the establishment of an independent and civilian review and complaints function overseeing CBSA. The Civilian Review and Complaints Commission (CRCC), which currently oversees the RCMP, would take on additional responsibilities of oversight over CBSA and be renamed the Public Complaints and Review Commission.

Harsha: What has been your experience with CBSA and why is CBSA oversight needed?

Karla Lottini

Karla: CBSA is not a fair or accountable agency. I dealt with CBSA when I had a deportation order. I was a refugee fleeing political persecution from Mexico and seeking safety. Canada initially refused my refugee claim and I was facing deportation. Eventually, I won my humanitarian and compassionate claim thanks to grassroots groups and my lawyer. But while I was facing deportation, I had to deal with CBSA and it was a bad experience. They didn’t believe that I was fearing for my life. They treated me with complete suspicion and all I heard about was their plans to kick me out of the country. It was very stressful and intimidating for my family and I because CBSA officers are armed and have complete control over the fate of our lives. Their attitude is very “my country, I decide” kind of attitude. They were very aggressive and, as a non-Canadian, I didn’t feel I had any rights or I could complain anywhere. The power imbalance is huge.

A few years later, I was very involved in seeking justice for Lucía Vega Jiménez. Lucia was a 42-year old Mexican migrant who hung herself in the Immigration Holding Centre in Vancouver. She died in CBSA custody, but CBSA never revealed details about her death to the public until another detainee contacted us and then we had a huge campaign and forced CBSA to admit there was a death in custody. We also had to fight for an inquest into Lucia’s death, and the BC Coroner’s Inquest found there were many mistakes made by CBSA and their contractors. How many other Lucia’s are there that we don’t know about? How many other immigrants and refugees are being denied critical mental health services? How many other people are being unfairly deported without being informed of their legal rights or being detained under unjust conditions without any recourse or investigation?

Harsha: Yes, the BC Corners Inquest raised a number of issues surrounding Lucia Vega Jiménez’s death in CBSA custody. Some of the issues, as you outlined, were CBSA’s failure to provide adequate mental health supports for Lucia, failure to advise Lucia of a legal application she could make to stop her deportation, failure to advise the public of her death, and the explosive revelation that CBSA contractors had falsified their reports about supervision of the detention facility. Among other findings, the Inquest found “there is no independent, realistic method for immigrants to bring forward concerns or complaints.”

Karla: It is very hard to bring forward concerns or complaints. In my professional employment, I work with newcomer immigrant and refugee children. The fear and trauma they experience is every day. The humanitarian image we project about Canada is not a reality. So many people come here and are rejected, like I was until I fought and went public with my situation. Many of the children I work with know that CBSA has told their families that they cannot remain in the country. CBSA criminalizes people; people are handcuffed, jailed, treated with suspicion, and made to feel like they have no right to asylum.

CBSA is considered ‘not as bad’ as Immigration and Customs Enforcement (ICE) in the US but it really is similar. Homes and workplaces are raided, families are separated, and people are detained and deported. You can be detained just for being a flight risk or looking suspicious. The browner you are, the more likely you are to be stopped and profiled. You are even more susceptible if you are poor. I know a journalist from Ayotzinapa, Mexico who was detained by CBSA. He was given no real reason. He showed them all his work credentials but they still didn’t allow him entry. CBSA officers kept saying “you don’t have enough money” and “you don’t look like a journalist.” I have been here eleven years and I am still waiting to see the truly welcoming culture that Canada likes to talk about. People are welcoming, but powerful agencies like CBSA are not.

Harsha: Latoya, what are some of your perspectives on why people in Canada should care about CBSA accountability and oversight?

Latoya Farrell, BCCLA Staff Counsel (Policy)

Latoya: Once, while I was living in the UK with a student visa, I traveled to Amsterdam. My student visa came in the form of a student card and I did not notice when it fell in the hotel room in Amsterdam. When I landed back in the UK, I realized I did not have my student card. The immigration and customs officer told me, “I can’t let you back in.” I showed him my passport, but he insisted on seeing the card. Panic set into me. I was a student, I had no money on me, all my stuff was in the school, and I didn’t know what I was going to do. I was sweating in panic. They eventually verified my identity and let me in but those three minutes felt like three years.

My experience wasn’t in Canada, but we can think about similar experiences happening to travellers in Canada, and especially for refugees who are more vulnerable. It should concern all of us that refugees seeking a life raft of survival or a beacon of hope are impacted by a powerful border services agency, which has no oversight or complaint process.

Harsha: Can you explain key components of Bill C-3?

Latoya: The main purpose of the Bill is to propose the establishment of an oversight body over CBSA, which is the only major law enforcement agency in Canada with no independent oversight.

There are significant issues with Bill C-3 that fall short of robust and meaningful oversight. The Bill will roll oversight into the CRCC, which is already under-resourced and has a significant backlog when it comes to complaints about the RCMP. Another issue is that third party complaints may not be permitted under Bill C-3, even though third party complaints are essential given the marginalization and vulnerability of refugees and people without secure status. People without secure status may feel afraid to complain about CBSA officers, or may even be deported and not in a realistic position to file a complaint. Third party complaints also tend to point to wider systemic issues, beyond an individual officer’s misconduct, which is essential to advancing the public interest. The Bill also needs to be more robust with respect to policy-based complaints. Systemic policy-based complaints about CBSA, and not just complaints about individual officers, should be explicitly permitted in order for the oversight process to be meaningful. This includes a review of CBSA policies such as indefinite detention, warrantless search and seizure, treatment of detainees, and more.

It is imperative that the government establish a meaningful and robust independent oversight body so that the most vulnerable in our society have their rights, dignity, and humanity protected when interacting with an agency with as much power as the CBSA. The model proposed in Bill C-3 does not achieve this. Passing this bill in its current state would significantly undermine principles like justice, protection of the most vulnerable, and holding law enforcement bodies accountable for their actions.